Bhojwani v Holroyd City Council

[2006] NSWLEC 199

Land and Environment Court

of New South Wales

CITATION:

Bhojwani v Holroyd City Council [2006] NSWLEC 199

PARTIES:

APPLICANT
Haresh Bhojwani

RESPONDENT
Holroyd City Council

FILE NUMBER(S):

11136 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Multi-unit development, villas and townhouses, character of area, streetscape, traffic and parking, open space areas and trees

LEGISLATION CITED:

Environmental Planning And Assessment Act
Holroyd Local Environmental Plan 1991

CASES CITED:

Zhang v Canterbury City Council [2001] NSW CA 167

DATES OF HEARING:

23-24/02/2006

EX TEMPORE JUDGMENT DATE:

02/24/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Wauchope, solicitor
SOLICITORS
Maddocks

RESPONDENT
Mr R Graham, solicitor
With Ms K Bracks, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

24 February 2006

11136 of 2005 Haresh Bhojwani v
Holroyd City Council

JUDGMENT

1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning And Assessment Act against Holroyd Council’s refusal of a development application for a multi-unit development containing nine villas and two townhouses on the site known as 18-20 Girraween Road, Girraween.

2 The Court had the opportunity of meeting on site yesterday morning with the parties and also had the opportunity of hearing from a number of resident objectors. When the Court returned yesterday, I noted for the record the concerns of those persons who gave evidence to the Court on-site.

3 In summary, the residents are concerned that the proposed development is an over development of the site because of the size and number of the units. The Councillor who gave evidence on site indicated that she considered that there should be more attention paid to quality rather than quantity and that the small unit developments had been overdone in the area. The residents are also concerned about tree removal from the site or the tree removal from the area generally by redevelopment of sites and the concern that because of the small nature of the units, garages would be used for other purposes and that there would therefore be insufficient parking on street to accommodate the additional vehicles and there was concern about the conflict of parking in particular because of the proximity of the school close to the subject site.

4 The area generally can be described as level topography and the subject site is in a street where there has been a number of redevelopment of lots for medium density townhouse and villa developments. The sites are all of a relatively uniform size and the general character is one that can be described as mixed in terms of the dwelling houses sitting on rather large allotments built probably in the middle of last century and more the recent redevelopment that has occurred within the area.

5 At the rear of the subject site there is an open space strip that leads to a park and this may also serve as a drainage swale although there was no evidence to this effect but there is clearly an open space area behind the subject site.

6 Another concern that the residents raised is with respect to the lack of playing space in redevelopments that occur such as these and that there is nowhere for the children to play and that the area is being raped and there is no backyards or there will be no backyards left with the incremental redevelopment of the area.

7 That leads me to the planning regime. The subject site is zoned Residential 2(a) under the Holroyd Local Environmental Plan 1991 and the 2(a) zone permits medium density development and also dwelling houses and dual occupancies. Residential flat buildings are prohibited but the Residential ‘A’ zone allows for medium density development. The relevant objective of the zone is “to provide and maintain the amenity of a predominantly low density living area and to enable sensitive infill of medium density housing types”.

8 Clause 30 of the LEP relates to medium density development in the 2(a) zone and states that:

The council shall not grant consent to development for the purpose of medium density developments unless:
a) it is satisfied the development would not unreasonably deprive adjoining buildings of sunlight or privacy.
b) the development would generally be compatible with its setting having regard to the nature and use of adjoining buildings and to the streetscape,
c) the design of the development will be compatible with the existing character of the neighbourhood and
d) the development will make a necessary contribution to the supply of housing in the City of Holroyd.

9 It was submitted on behalf of the respondent that the objectives relevant to the development are to be generally compatible with its setting having regard to the nature and use of adjoining development and the streetscape is the relevant objective in these proceedings and the objective of the zone in terms of maintaining a predominantly low density living area and sensitive infill development.

10 The Development Control Plan includes a number of provisions, in particular the provision relating to the consolidation of lots at 0.1 “to encourage variety and choice in housing forms by providing for a broad range of dwelling sizes regardless of project size”. The other objectives are: “to meet the projected requirements of people with differing housing needs to ensure that developments are compatible with both the established character and the desired future amenity of particular residential areas and to provide sufficient area and dimensions for each allotment to enable the siting and construction of a dwelling and ancillary outbuildings, the provisions of private open space with regard to solar and daylight access and convenient vehicle access and parking”.

11 The controls under 10.2, relate to the minimum lot size for the erection of villa/townhouse developments, “a minimum parcel of not less than 1300 sq m with a frontage not less than 20 m that must be an existing parcel (as at 27 January 1999) and parcels consolidated after this date will not be considered by council”.

12 DCP 4, Guidelines for villa townhouse and Integrated Developments has overall objectives:

• to provide controls which lead to the production of villa townhouses and integrated housing which is environmentally compatible with adjoining residential developments.
• provide for an alternative one and two storey housing form within the City;
• development that is sympathetic and compatible with conventional detached dwelling houses while maintaining the existing character of residential neighbourhoods.
• assist in optimising the utilisation of land resources;
• widen the choice of housing forms within the City;
• provide flexibility to encourage innovation;
• to provide a supply of housing to suit the needs of those members of the community where traditional detached housing is not the most appropriate type;
• supply flexible housing to provide for modifications to meet changing lifestyles and mobility;
• provide increased housing supply close to public transport and employment;
• provide housing with good access to existing facilities and services and open space; and
• ensure housing is provided as part of a comprehensive development scheme.

13 This DCP reiterates the objectives of the 2A zone as well and it contains provisions for solar access, set backs, that is front and rear set backs and side set backs, solar access, energy conservation. It is not disputed that the proposal generally complies with the development control plan guidelines except for one portion or two portions of the building that exceed the building height plane on one corner although the averaging of the development or the built form would satisfy such requirements but there is a slight exceedance in the building height plane.

14 The other provisions with respect to the amount of open space provided and the solar access is also satisfied by the proposal and in that regard the Court had the benefit of an assessment from Mr John Pagan who is a consultant town planner, the Court appointed expert in these proceedings. He assisted the Court and provided a statement of evidence to the parties.

15 The subject development application has been amended since it was initially considered by the council and the plans that Court is considering the amended plans, known as Exhibit A in the proceedings and the amended landscape plan.

16 The council provided a statement of basic facts which describes the land as Lots 57 and 58, DP5768 located on the northern side of Girraween Road. The total area of the proposed development site is approximately 2,670 m with a frontage of some 44 m to Girraween Road. The site falls from approximately 2 m to the north and each lot is presently developed with a single storey dwelling and a detached garage.

17 The statutory provisions are as I stated above and there is also a development control plan for car parking known as DCP No. 1. The proposal complies with the DCP for parking. It is noted the DCP is silent when it comes to whether tandem parking or the amount of tandem parking that can be provided is satisfactory or appropriate.

18 It is noted that the subject development requires one garage for two bedroom units and two parking spaces or garages for three bedroom units. There are 4 x 3 bedroom units in the subject development application and the requisite number of parking spaces is 18 spaces which is 15 for the units and three visitor spaces. The development complies in this regard.

19 A Statement of Issues was provided to the Court and as I stated at the end of the day with the amendments and following the assessment of the Court appointed expert there is one major issue in these proceedings and that is the DCP in terms of existing parcel requirements, the non-compliance with the provisions of cl 10.2. The subject lots, that is 57 and 58, were held in separate ownership and still are held in separate ownership, therefore they were not consolidated as of the date of 27 January 1999.

20 The DCP unfortunately does not provide objectives for the consolidation principle. It would appear that the DCP encourages gun barrel development, that is multi-unit development served by a driveway down one boundary.

21 The Court has considered council’s controls and notes in Exhibit 10 in the proceedings, that council has resolved to prepare or amend its LEP to incorporate the same provision as in the development control plan about lots not being able to be consolidated. The provision it would appear, although as I say there are no clear objectives or aims articulated in this provision, not only encourages gun barrel developments but it would also appear that the council is also seeking to limit the size of multi-unit developments as the maximum number of villas/townhouses on a single residential site is five or six depending on actual size whereas with consolidating two lots eleven dwellings can be achieved as for the subject lot. However, this does not yield a greater density per se in terms of the DCP requirements.

22 I agree with Mr Pagan that the advantage of having a common driveway down the middle of a multi-unit development to serve two rows of townhouses/villas has the advantage of minimising the amount of impermeable surfaces in terms of driveways that is there is greater soft area available by the reduction from two to one driveway.

23 The proposal is for eleven units which is not a small multi-unit development but at the same time it is not a large multi-unit development. And if it is the objective of the council as there is in some areas a preference for smaller type villa townhouse/developments, then that should be explicitly stated within the DCP and the aims and objectives stated as such. However, eleven units is not of a size that should warrant concern and this number has the advantage of the efficient use at one driveway and fewer gutter crossings and less hard surface area.

24 It was submitted on behalf of the applicant that SEPP 4 does not require a development application or development consent for the consolidation of lots and that furthermore the provision in the DCP would have the effect of prohibiting multi-unit development on lots such as the subject lot. Clause 10.2 if it is applied to the established character or the desired future amenity, at the end of the day the proposal results in townhouses or villas on either side of this driveway which will present in a form and scale not inconsistent with the dwelling houses in the streetscape except for one less driveway access. Therefore, in terms of the amenity or the character of the area I am satisfied the proposed development is not inconsistent and in fact it is compatible with the development occurring in the area and it is not a large scale multi-unit development that has a different character in the streetscape.

25 Mr Pagan provided in the Court’s assessment a considered assessment of this provision and I agree with his comments that the result is that two adjoining complying lots can be developed separately but not together. The major difference between the two alternative development scenarios would be the additional area required for the provision of separate vehicle access driveway for each of the separate lots compared with shared access for the consolidated lots and this minimises the impermeable area devoted to car access that is consistent with good town planning principles.

26 On the basis of the interpretation of the controls put to the Court by council no additional dwelling house lots would be subject to medium density development. Mr Pagan states bearing in mind that medium density housing is permissible with consent in all areas zoned Residential 2(a), the specific planning objective of cl 10.2 relating to established character and desired future amenity appears to restrict medium density development to those sites that comply with the minimum dimensions whilst maintaining single dwelling houses on smaller sites.

27 Similarly, if council is seeking to limit the number of multi-unit developments within an area in terms of a percentage of the area that can be developed for medium density, then as worded this would not appear to be a clause that would achieve this either. Clearly the control should state the purpose or aim.

28 By way of comment it would appear that council may need to redefine the purpose of the clause and provide some very clear objectives in terms of for example if it seeks to restrict very large multi-unit developments in favour of smaller medium sized developments then this should be stated and it could also perhaps look at the total area that is zoned for 2(a) and if it is seeking to limit the amount of medium density developments then it needs to give further consideration to the wording of such a provision.

29 As required in terms of Zhang v Canterbury City Council [2001] NSW CA 167, a judgment of the Chief Justice in the State in the Court of Appeal, the DCP must be a central focus in terms of assessment and proper genuine and realistic consideration must be given to it. I have indeed given it proper and genuine consideration and I am of the opinion in my assessment that a variation is justified with 10.2 as the proposed development is one that will not undermine the character of the area in terms of the current dwelling houses and the future of the area when redeveloped.

30 However, I am satisfied that the proposed development with its size and scale of eleven units will not undermine the character of the area.

31 The other issues that the council raised in the Statement of Issues as I stated have been largely addressed by amended plans. There were a number of matters that arose as a result of the residents’ objections and the site inspection.

32 With respect to the issue of trees, the Court is concerned about in particular canopy trees and replacement canopy trees to complement medium density development. It is important that medium density developments provide sufficient space so that canopy trees can be planted and in terms of the site plan and the layout of the proposed development there is the opportunity to provide the planting of additional canopy trees.

33 It is noted that the jacaranda whilst it may not be a native tree nonetheless it is a significant tree in providing amenity not just for the subject site but for the area generally and this to be retained in the proposal and it will be important that during construction that there are adequate measures to ensure its protection. There are other trees, at the rear of the site that are to be maintained while a number will also be removed however in the overall future landscape concept plan, I am satisfied that additional canopy trees can be provided. The box gums on the street verge are to be retained and further reinforced with other plantings of the same species and this is appropriate in the context of the streetscape and the contribution of trees to the area.

34 One thing that the Court notes is that many of the canopy trees unfortunately are proposed to be planted only some half a metre from the boundaries. This is only creating future neighbour problems and clearly any canopy trees, in particular those proposed in the concept plan that are of considerable height, must be at least 1 m from the common boundaries with other properties. Clearly it is desirable to plant large canopy trees at an even greater distance than 1 m in this regard, any amended landscape plan would have to have regard to this.

35 With respect to the issue of playing areas, the courtyards comply with the council’s requirements in terms of their size and configuration however I appreciate and understand the residents’ concerns about providing for areas where children can play because many multi-unit developments are occupied by families. However, I note that the rear of the subject property has the advantage or the benefit of an open space swathe and the development consent also requires a contribution in terms of s 94 contributions for open space. And with respect to the development itself having access to playing areas during the course of the proceedings it has been agreed that a gate be provided at the rear of the development that adjoins the common property area such that children would then have access to the open space area at the rear of the site. In the circumstances of this case, the development has the advantage of the proximity or the adjoining open space area.

36 With respect to the issue of garages being converted and used for other purposes, the applicant has proposed a condition which is that the garages be used for the parking of vehicles as opposed to other purposes. Clearly, some storage would be allowed but the garages are to be used for the parking of the vehicles generated by the proposed development. It could be seen on the site that there is a school within close proximity diagonally opposite the subject site and there should be an assurance that garages are used for the purposes as shown.

37 During the proceedings there was concern about the plans showing the requisite widths for the disabled parking, that is 3.8 m x 6 m on the plans and that the plans would appear not to scale at the correct measurements and there would need to be adjustments in that regard.

38 Council also proposed a number of deferred commencement conditions and the deferred commencement conditions relate to plans being submitted to show the disabled units post and pre-adaptation so that it can be certainty that those particular units that are nominated on the plan can in fact be adapted.

39 There is also a need for the submission of details of the front boundary fence, it is noted that in terms of council’s development control plan that the front boundary fence would comply. The Court however, expresses concern and considers there is justification for a departure from the development control plan and from council’s condition about the front fence to ensure that there is surveillance for safety in terms of the street.

40 It is an accepted town planning principle that there be the opportunity for casual surveillance of streets from dwellings to increase safety of the public domain and the council’s conditions in this regard would appear not to be sympathetic or rather would undermine casual surveillance and for this reason the front boundary fence is to be a maximum height of 1.2 m as opposed to 1.8. It may have brick pillars as council requires or masonry pillars but it must have at least a 50 percent transparency factor either by way of palisade fencing or timber slats. There is a requirement for privacy of the townhouses at the front, that is for units 1 and 2, then the landscaping should be used to achieve filtered views rather than constructing what would appear to be solid high fences on the front boundary. It is noted that the proposed front boundary fences are set back some 3 m and this complies with council’s interpretation of its DCP that some 50 percent of the front set back area may be devoted to the private open space of those dwellings. It could be seen on the view that this is the way that the DCP is applied. However, there is a need to ensure in terms of compatibility, in terms of other objectives, consistency, the amenity of the streetscape, and maintaining the character of the area that solid fences in front of medium density developments are not always appropriate if they are to blend with or harmonise with the existing character of the area.

41 The other issues that were raised by the council concern drainage. It is noted that there is a deferred commencement condition with respect to drainage. The deferred commencement conditions also require a further detailed landscaping plan which should be generally in accordance with the concept landscape plan that has been provided.

42 On the issue of bonds the respondent has agreed that these be framed in a performance based way which would be an appropriate wording for such conditions. Clearly there should also be a condition that the canopy trees be maintained and where in the event that one may die, they are to be replaced with a similar species to ensure that there is a contribution to the general vegetated nature of the area and to enhance the provision of canopy trees on the site.

43 The issue of bonds was also discussed and there was agreement that these conditions should be re-worded to accommodate the council’s concerns and to satisfy the applicant.

44 The other conditions are as generally agreed to between the parties. There is a condition about the removal of graffiti and this should be the responsibility of the body corporate in particular for the rear fence that adjoins the public reserve.

45 I indicated that I would provide my findings with respect to the issue of the consolidation clause in the DCP and in this regard I find that the application does not warrant refusal. Bearing in mind that in terms of the Court of Appeal decision of Zhang v Canterbury the provisions of a DCP while discretionary I have given it ‘proper, genuine and realistic consideration’ and I refer to my comments stated above.

46 Another issue raised by residents was that of garbage bins and in terms of ensuring that the garbage bins can be accommodated in each of the premises it must be clear as to where the garbage receptacles are to be stored and there should be a designated space on the plan as such. This is a development of only eleven units as opposed to a large development which would in fact require a common garbage area.

47 The other issue the council raised concerns solar access and overshadowing and I am satisfied and also with the minor adjustment referred to in Court that a return window to the east and north elevation for the family room of unit 2 can be provided would provide solar access to this dwelling as well as to the private open space area. Mr Pagan has assessed all the other units as well and he is satisfied that they comply with council’s requirements for solar access.

48 Therefore, on the basis of my assessment, I have decided that approval should be granted to the subject development application and the parties are to forward to the Court the agreed conditions. The ‘deferred commencement’ condition must include a requirement for the Australian Standards to be satisfied in terms of the manoeuvring areas for the garages off the central driveway and verification of the width of garages and parking and the adaptability of the identified units as part of the deferred commencement condition.

49 Clearly if there are any significant changes that cannot be accommodated because of a non-compliance then the deferred commencement consent could not operate

50 Therefore, on the basis of my assessment the formal orders of the Court are:

1) The appeal in respect the property known as 18-20 Girraween Road, Girraween, is upheld.
2) The development application submitted to Holroyd City Council and as amended and shown in Exhibit A is approved subject to a deferred commencement and the conditions contained in Annexure ‘A’.
3) The exhibits with the exception of A, C, G, 8 and 11 are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
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